, Volume 2, Issue 2, pp 131-135
Date: 17 May 2008

Why Criminal Law? The Role of Utilitarianism: A Response to Husak

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In the UK the criminal law is increasingly seen as the instant panacea to any social problem. Since the present Labour Government came into power it has created well over 3,000 new criminal offences.

The Independent, August 16, 2006.

The debate in the 1960s was about the appropriate criteria for criminalisation with the aim of answering the question: what offences could be decriminalised? Now, the criminal law is seen more in terms of a first resort solution to any problem. Husak rightly argues that the criminal law subjects offenders to state punishment which involves the deliberate infliction of hard treatment and censure. It involves moral condemnation and liability to stigmatic punishment. As Bentham put it, it involves an evil.

See Bentham (1789).

Accordingly, as Husak makes clear, it needs justification.

Husak argues that the punishment of offenders infringes what he terms “the right not to be punished”. For society it involves immense drawbacks: vast expense, the susceptibility to ...